92 Decision Citation: BVA 92-24240
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-01 989 ) DATE
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THE ISSUE
Entitlement to service connection for residuals of a neck
injury, a back injury, fractures of the arm and hand, and
groin injuries.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the
United States
ATTORNEY FOR THE BOARD
T. J. Conway, Counsel
INTRODUCTION
The appellant served on active duty from March 1947 to
January 1950.
He also served in the Army National Guard from June 1972 to
September 1972.
These matters came before the Board of Veterans' Appeals
(the Board) on appeal of an October 1990 rating decision of
St. Petersburg, Florida, Regional Office (RO) and the
Department of Veterans Affairs (VA) which denied service
connection for residuals of injuries to the neck and back,
residuals of fractures of the arm and hand, and residuals of
groin injuries. He was notified of the denial on November
28, 1990. The notice of disagreement was received in
December 1990. Thereafter, in December 1990, the RO issued
a decision which confirmed and continued the action
previously taken. The statement of the case was issued in
January 1991. In August 1991 the RO issued a rating
decision which confirmed and continued the prior denial of
service connection for each of the claimed disorders. A
supplemental statement of the case was issued in August
1991. The substantive appeal was received on November 22,
1991. The case was placed on a docket at the Board in May
1992. In July 1992 the veteran's accredited representative,
the Veterans of Foreign Wars of the United States, presented
additional written argument.
CONTENTIONS OF APPELLANT ON APPEAL
It is asserted the veteran sustained injuries to his neck,
back, groin, arm and hand during active service.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104
(West 1991), following review and consideration of all
evidence and material of record in the veteran's claims
file, and for the following reasons and bases, it is the
decision of the Board that the preponderance of the evidence
is against the grant of entitlement to service connection
for a neck disorder, a back disorder, residuals of fractures
of an arm and a hand, and residuals of a groin injury.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal as to each of the
matters here at issue has been obtained by the RO.
2. Any injuries to the neck, back, arm, hand, or groin
which occurred while the veteran was on active duty was
acute and transitory, resolving without permanent residuals.
3. Osteoarthritis of the lumbosacral spine was not present
in service or within the year following the date the veteran
was discharged from service and has not been shown to have
been associated with trauma which occurred in service.
4. Intervertebral disc syndrome, C5-C6 with radiculitis
down the right arm has not been shown to have been present
in service or to be associated with trauma which occurred in
service.
5. The currently demonstrated arthritis and bursitis of the
right shoulder was not present in service and arthritis of
the shoulder has not been shown to have been present during
the year following the date the veteran was discharged from
service.
6. Residuals of fractures of the 4th and 5th metacarpals of
the left hand have not been shown to have been present in
service or to be otherwise of service origin.
7. The veteran's left testicle was undescended at the time
he entered active service and pathology associated therewith
has not been shown to have increased in severity during
service; left inguinal hernia or a disorder involving the
right groin area have not been shown to have been present in
service or otherwise related to service.
CONCLUSIONS OF LAW
1. A neck disorder, including intervertebral disc syndrome
of C5-C6 was not incurred in or aggravated by service and
arthritis of the right shoulder may not be presumed to have
been incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113,
1131, 1137, 5107 (West 1991); 38 C.F.R. §§ 3.307, 3.309
(1991).
2. A chronic back disorder was not incurred in or
aggravated by service and degenerative arthritis of the
lumbosacral spine may not be presumed to have been incurred
in service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137,
5107 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1991).
3. Residuals of a fractured arm and hand, including the
4th and 5th metacarpals of the left hand, were not incurred
in or aggravated by service. 38 U.S.C.A. §§ 1131, 5107
(West 1991).
4. An undescended left testicle clearly preexisted active
service, rebutting the presumption of soundness at entry,
and was not aggravated by service. 38 U.S.C.A. §§ 1111,
1131, 1137, 1153, 5107 (West 1991); 38 C.F.R. §§ 3.303(b),
3.306 (1991).
5. An inguinal hernia or chronic disorder of the groin was
not incurred in or aggravated by service. 38 U.S.C.A.
§§ 1131, 5107 (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Initially, the Board finds that each of the veteran's claims
is well grounded in that they are not implausible and that
all development and facts have been properly developed so
that no further assistance is required to comply with the
duty to assist him, pursuant to 38 U.S.C.A. § 5107 (West
1991).
At the outset, it is noted that the veteran's service
medical records are not available and that the National
Personnel Records Center has certified that they were stored
at a location at the center where they may be presumed to
have been destroyed by a fire which occurred there in 1973.
We are cognizant of precedent decisions of the United States
Court of Veterans Appeals which have mandated that cases in
which a veteran's records are not available for
consideration through no fault of his own must be handled
with extra care. In these circumstances we have considered
carefully all of the evidence currently before us prior to
reaching the decisions which we have reached in this case.
We are satisfied that the veteran sustained injuries as the
result of his service as a paratrooper while on active duty,
particularly an incident which occurred in 1949 at Fort
Bragg, North Carolina, when, as has been corroborated by a
former fellow serviceman, he experienced a malfunction of
his main parachute and was found by the aforementioned
former service comrade and another soldier lying on his back
with his main and reserve "chutes" out of their packs, after
which he was removed from the drop zone by an ambulance. We
acknowledge that reports on file show that he was placed on
sick call for an unspecified condition in April 1949 and was
returned to duty after treatment. We are also convinced,
after careful consideration of the evidence before us, that
any such disability which the veteran sustained in service
was acute and transitory. We will explain the reasoning by
which we reached this decision below.
I. Injury to the Cervical Spine,
Including the Right Shoulder
In our view, it is significant that when the veteran was
examined for entrance into the National Guard in June 1972
no abnormalities of the neck or upper extremities were
found, and the veteran reported, in response to a question
on his medical history as to whether he had or had ever had
"painful or 'trick' shoulder or elbow", he answered "no."
We are aware that, when he was examined by the VA in January
1990 he complained of pain in his neck and right shoulder
with stiffness and lack of coordination in his right arm
which caused problems when he wrote. It is noted that
tenderness was found over the cervical spine area, at
C4-C5 with radiation of pain down the right shoulder to the
right arm, with clinically recorded complaints of occasional
uncoordinated movement in the right hand, especially in the
right index finger. The examiner noted there was no
apparent limitation of motion of the cervical spine although
there were complaints of pain on flexion and extension of
the spine. X-rays of the right shoulder were within normal
limits as were X-rays of the cervical spine except for
evidence of slight encroachment on the neural foramina
bilaterally in the areas of the 3rd and 4th, 4th and 5th and
5th and 6th cervical vertebrae.
The evidence includes a statement from Dr. Kyle Studley of
the Labelle Chiropractic Clinic and clinical entries
recorded between October 23, 1989, and January 11, 1990.
These records show periodic complaints and associated
treatment for neck, right shoulder, right elbow and right
arm pain.
Based on our review, the evidence, both positive and
negative, is not approximately balanced so as to allow
favorable action on the veteran's claim for service
connection for a "neck" injury, and based on the evidence, a
grant of service connection for a disorder of the neck or
right shoulder, including intervertebral disc syndrome,
C5-C6 with radiculitis down the right arm or for arthritis
and bursitis of the right shoulder would not be warranted.
Pertinent disability is manifested at a time too remote from
service to be causally related. As concerns arthritis, the
evidence does not show that an arthritic process was present
in the veteran's right shoulder either during service or
during the year following the date he was separated from
service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107
(West 1991); 38 C.F.R. §§ 3.307, 3.309 (1991).
II. The Back, Including the
Lumbosacral Spine
Again, it is noted that the spine was reported normal when
the veteran was examined for enlistment in the National
Guard in June 1972 and that in the medical history
questionnaire referenced above, he answered no to a question
as to whether he had or had ever had "recurrent back pain."
We are aware that tenderness was found over the lumbosacral
spine area on the VA examination in January 1990. However,
there was no apparent limitation of motion of the
lumbosacral spine and the reflexes, the achilles and knee
jerks were diminished but normal. A possible old fracture
was seen through the pars interarticularis on the right at
L5. However, particularly in the light of the normal
findings reported on the National Guard examination in 1972,
this was reported at a point in time too remote from service
to be related thereto. It is also noted that osteoarthritis
of the lumbosacral spine was diagnosed on the examination,
but with the absence of evidence that osteoarthritis of the
lumbosacral spine was either present in service or during
the year immediately following the veteran's period of
active duty, service connection for arthritis of the
lumbosacral spine is not warranted.
In summary, the evidence, both positive and negative, is not
approximately balanced or in favor of the veteran's claim
for service connection for a back disorder, including
osteoarthritis of the lumbosacral spine. 38 U.S.C.A.
§§ 1101, 1112, 1113, 1131, 1137, 5107 (West 1991); 38 C.F.R.
§§ 3.307, 3.309 (1991).
III. Broken Arm and Hand
Specifically, the veteran contends that he fractured his arm
and hand during the parachute jump incident referred to
above. It is noted that residuals of fractures of the 4th
and 5th metacarpals of the left hand were found on the VA
examination in January 1990. Again, however, it is noted
that no abnormalities of either hand were reported when the
veteran was examined for entrance into the National Guard in
1972. In his substantive appeal, he specifies that his
right hand and arm were injured in service. Under the
circumstances, the evidence, both positive and negative is
not approximately balanced or in favor of the veteran's
claim for service-connected residuals of a fractured arm
and/or hand. 38 U.S.C.A. §§ 1131, 5107 (West 1991).
IV. Residuals of Injury to the Groin
Specifically, the veteran contends that although his left
testicle was undescended when he entered service at the age
of 15, he was accepted in service and the weakened state of
his groin area resulted in injuries which were caused by
"numerous parachute opening shocks." It is his position
that his examination by the National Guard was cursory and
should have showed signs of undescended testicle. It is his
stated position that if the examination had "been properly
performed" his "lifelong problem of undescended testicle"
would have been diagnosed, as well as the other claimed
injuries which have been discussed above.
There are on file medical records from Mercy Hospital which
show that the veteran was transported by ambulance to the
hospital in October 1958 with an admitting diagnosis of left
inguinal hernia. Operating room records from the hospital
show preoperative diagnoses of indirect and direct inguinal
hernia and undescended testicle. The records also show that
a left inguinal herniorrhaphy as well as a hernioplasty and
orchiectomy were performed. When the veteran was examined
by the VA in September 1990 a left inguinal hernia scar was
found. In addition pain and tenderness was noted in the
right groin area, etiology unknown. The diagnoses included
a history of undescended left testicle, a history of left
inguinal hernia repair, painful right groin area, etiology
unknown. There is nothing in the clinical record to
establish that pertiment disability was either present in
service or aggravated therein. In our view, the evidence,
both positive and negative, is not approximately balanced or
in favor of the veteran's claim for service connection for
residuals of groin injuries. 38 U.S.C.A. §§ 1111, 1131,
1137, 1153, 5107 (West 1991); 38 C.F.R. §§ 3.303(b), 3.306
(1991).
ORDER
Service connection is denied for the claimed neck, back,
arm, hand and groin disorders.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
MEMBER TEMPORARILY ABSENT THOMAS J. DANNAHER
EUGENE A. O'NEILL
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
(CONTINUED ON NEXT PAGE)
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.